5.3Permissible and Impermissible Sentencing Considerations

At the outset, ensure all information being considered is accurate; due process requires that “‘[a] sentencing judge’s exercise of discretion must be based on accurate information.’” People v Bennett, 335 Mich App 409, 434 (2021), citing People v Miles, 454 Mich 90, 100 (1997), and quoting People v Smith, 423 Mich 427, 448 (1985).

A.Proper Considerations

The following factors may be considered when imposing a sentence:

•The severity and nature of the crime committed. People v Oliver, 242 Mich App 92, 98 (2000).

•The circumstances surrounding the criminal conduct. Oliver, 242 Mich App at 98. People v Sherrill, ___ Mich App ___, ___ (2024) (holding that the trial court did not err in considering uncharged conduct such as defendant’s conduct leading up to the incident and “the impact his actions had on his child when the child was present when her mother was shot dead”).

•The defendant’s attitude toward his or her criminal behavior. Oliver, 242 Mich App at 98.

•The defendant’s social and personal history. Oliver, 242 Mich App at 98.

•The defendant’s criminal history, including subsequent offenses. Oliver, 242 Mich App at 98. See also People v Beck, 504 Mich 605, 626-627 (2019) (permitting consideration of uncharged conduct); People v Johnson, ___ Mich App ___, ___ (2024), (permitting the court to consider charged conduct by a preponderance of the evidence when there is a hung jury that has made no findings about the conduct at issue); People v Ewing, 435 Mich 443, 473 (1990) (court may consider prior convictions, matters of public record, admissions, and as long as a preponderance of the evidence supports it, the court may also consider uncharged criminal activity, activity for which criminal charges are still pending, and acquitted criminal activity); People v Barnes, 332 Mich App 494, 508-509 (2020) (citing Beck and holding other-acts evidence may be considered during sentencing). Absent any other constitutional infirmity (and presumably subject to the 10-year gap requirement for prior record variable (PRV) scoring¹), a defendant’s expunged juvenile records are properly considered when imposing sentence. People v Smith, 437 Mich 293, 302-304 (1991).

•The defendant’s false testimony. People v Adams, 430 Mich 679, 688, 693 (1988) (false testimony may be considered “when the record contains a rational basis for the trial court’s conclusion that the defendant’s testimony amounted to wilful, material, and flagrant perjury, and that such misstatements have a logical bearing on the question of the defendant’s prospects for rehabilitation”).

•The defendant’s post-arrest conduct in prison where that conduct is not accounted for by the sentencing guidelines. People v Houston, 448 Mich 312, 323 (1995). “[J]ust as an exemplary custodial record might be found to be a mitigating circumstance, misconduct in custody may be an aggravating circumstance indicating a disposition to violence or impulsiveness.” Id. See also People v Sherrill, ___ Mich App ___, ___ (2024) (holding that the trial court did not err in considering defendant’s “poor adjustment to incarceration, which involved 55 misconducts”).

•The defendant’s potential for rehabilitation. Houston, 448 Mich at 323.

•Evidence of a defendant’s lack of remorse may be properly considered in determining his or her potential for rehabilitation. Houston, 448 Mich at 323.

•“A reasonable sentence may include a limited consideration of a defendant’s age in terms of other permissible and relevant individual factors such as the absence or presence of a prior record.” People v Fleming, 428 Mich 408, 423 n 17 (1987). However, a sentencing court may not arbitrarily lengthen an offender’s prison sentence for the expressed purpose of incarcerating the offender “beyond the age of violence.” People v Fisher (After Remand), 176 Mich App 316, 318 (1989). It is also inappropriate to consider a defendant’s age in assessing the risk of recidivism where no evidence was presented to support the court’s opinion of the defendant’s probable recidivism. People v McKernan, 185 Mich App 780, 781-783 (1990).

•An adult defendant’s juvenile records when imposing sentence, even when the juvenile records have been automatically expunged. Smith, 437 Mich at 304. See also MCL 712A.18e(13)(d).

•As long as the defendant has an opportunity to refute it, a court may consider a defendant’s alleged criminal conduct even when the conduct does not result in conviction. People v Wiggins, 151 Mich App 622, 625 (1986). See also People v Compagnari, 233 Mich App 233, 236 (1998) (the court “may consider the evidence offered at trial, including other criminal activities established even though the defendant was acquitted of the charges”) (citations omitted); People v Granderson, 212 Mich App 673, 679-680 (1995) (a trial court may properly consider facts underlying a defendant’s previous acquittal of other charges); People v Moore, 70 Mich App 210, 213 (1976) (court properly considered criminal conduct arising from charges that were dismissed pursuant to a plea agreement where defendant did not deny the accuracy of the charges); People v Sherrill, ___ Mich App ___, ___ (2024) (holding that “because the court’s reasons for departure [the consideration of uncharged conduct] justif[ied] the departure and the amount of the departure, resentencing [was] not required”).²

•“[T]he effect of the crime on the victim.” Compagnari, 233 Mich App at 236.

Note: The factors in Miller v Alabama, 567 US 460 (2012), apply when a defendant is sentenced for a crime committed as a juvenile, but the factors should not be considered aggravating factors during sentencing. People v Eads, ___ Mich App ___, ___ (2025). A juvenile defendant’s “50-to-75-year term-of-years sentence for second-degree murder [does not] pass muster under the Michigan Constitution’s prohibition against cruel or unusual punishment.” Eads, ___ Mich App at ___. Additionally, “[u]nder the principle of proportionality, [a defendant is] entitled to be sentenced in a manner that duly account[s] for the individualized circumstances of the offender and the offense.” Id. at ___. “[A]s Miller and its progeny have now made clear, such circumstances include mitigating considerations related to [a defendant’s] youth.” Id. at ___. The trial court erred when it “dismissed the very notion that such characteristics might have a mitigating effect and instead considered them as aggravating factors in support of a significant departure sentence—an approach plainly contrary to Miller and its progeny.” Eads, ___ Mich App at ___.

Individualized Term-of-Years Sentence: People v Bullock, 440 Mich 15, 30, 33-34 (1992), “set forth criteria to apply in a challenge to a statutory sentence: (1) the severity of the sentence imposed compared to the gravity of the offense, (2) the penalty imposed for the offense compared to penalties imposed on other offenders in Michigan, (3) the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states, and (4) whether the penalty imposed advances the penological goal of rehabilitation.” People v Nard, ___ Mich App ___, ___ (2025). “There is no requirement that a trial court reduce its sentence out of consideration for a defendant’s youth.” Id. at ___. “Instead, recent caselaw requires only that the attributes of youth be taken into consideration.” Id. at ___. “There is no authority that imposes a higher standard of articulation regarding youth beyond [the] general requirement that a trial court must adequately explain its sentence on the record in order to facilitate appellate review.” Id. at ___ (cleaned up). In Nard, “defendant was convicted of two counts of second-degree murder for the brutal killing of two young boys (and rape of one) who were fishing at a local pond.” Id. at ___. “For these crimes the trial court, in exercising the statutory discretion granted to it, sentenced defendant to two terms of life with the possibility of parole.” Id. at ___. “But then, in People v Stovall, 510 Mich 301, 322 (2022), the Michigan Supreme Court held that sentencing juvenile offenders convicted of second-degree murder to serve terms of life, even with the possibility of parole, constituted cruel or unusual punishment.” Nard, ___ Mich App at ___ (citation omitted). “As a result, . . . the trial court resentenced defendant to serve concurrent prison terms of 60 to 150 years for each conviction.” Id. at ___. Defendant appealed the sentences, “present[ing] an as-applied challenge to his individualized [term-of-years] sentence, which requires [the Court] to consider the particular facts surrounding defendant’s conviction and sentence.” Id. at ___ (quotation marks and citation omitted). Additionally, defendant argued that “the trial court erred by not adequately considering the mitigating factors of youth.” Id. at ___. As to the harshness of punishment, the trial court “did not abuse its discretion in finding that defendant’s intentional, brutal, and torturous killing of innocent and essentially helpless children outweighed the severity of this term-of-years sentence.” Id. at ___. As to comparative punishments, “[d]efendant’s sentence was not disproportionate to sentences that the Legislature has authorized for other serious crimes.” Id. at ___. The Court noted that “Michigan’s sentence for second-degree murder does not appear out of step with the majority of other jurisdictions in this country.” Id. at ___. But in this case, the comparative-punishment factor suggests that “defendant’s sentence was unduly harsh when compared to second-degree murder sentences for other juvenile offenders.” Id. at ___. As to rehabilitation, defendant contended that his sentence, effectively life imprisonment, failed to account for his rehabilitative potential, which is a goal of granting parole. Id. at ___. The defendant’s argument was not persuasive as he had already been paroled. Id. at ___. “In sum, the trial court adhered to its obligation to balance defendant’s attributes of youth . . . and in doing so it handed down a sentence that was individualized to defendant and the circumstances of his crimes.” Id. at ___.

Retroactive Application of People v Parks, 510 Mich 225 (2022): Miller “held that mandatory life without parole for a juvenile convicted of a homicide offense constitutes cruel and unusual punishment as prohibited by the Eighth Amendment . . . .” People v Poole, ___ Mich ___, ___ (2025), aff’g ___ Mich App ___ (2024). In Parks, the Michigan Supreme Court “held that federal precedent concerning the Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ did not support extending Miller’s protections to 18-year-olds,” but “that our state Constitution’s broader prohibition against ‘cruel or unusual punishment’ under Const 1963, art 1, § 16 did support such an extension.” Poole, ___ Mich at ___. Whether Parks would have retrospective or prospective application required an initial determination of whether “the Parks holding was merely procedural, or whether it concerned substantive rights of a fundamental nature.” Id. at ___. “[S]ubstantive rules should normally be given retroactive application.” Id. at ___. Also relevant to determining whether a decision should be applied retroactively or prospectively are the Linkletter-Hampton factors: “‘(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.’” Poole, ___ Mich at ___, quoting People v Hampton, 384 Mich 669, 674 (1971) (utilizing the standard set in Linkletter v Walker, 381 US 618 (1965)). However, “[t]he importance of the Linkletter-Hampton factors is greatly circumscribed when substantive rules or rights are implicated in a holding, and retrospective application is favored.” Poole, ___ Mich at ___. Only when the Linkletter-Hampton factors “strongly indicate otherwise” will a substantive rule be limited to prospective application. Id. at ___. Because Parks involved a substantive rule, it should be given retroactive application and its application to the defendant in Poole required that the defendant be resentenced according to MCL 769.25. Poole, ___ Mich at ___. (confirming retroactivity with Linkletter-Hampton factors and overruling the state retroactivity analysis in People v Carp, 496 Mich 440 (2014)).

Note that the statutory sentencing guidelines have quantified many of the historical considerations discussed above. See Chapter 2 for a detailed discussion of scoring under the statutory sentencing guidelines.

B.Improper Considerations

The following factors may not be considered when imposing a sentence:

•Acquitted conduct. People v Beck, 504 Mich 605, 609 (2019) (vacating defendant’s sentence where it was based in part on acquitted conduct because “[o]nce acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime”).³ See also People v Boukhatmi, ___ Mich App ___, ___ (2024) (prohibiting the trial court from considering acquitted conduct in scoring OV 13)⁴; People v Kilgore, ___ Mich App ___, ___ (2024) (holding that where “defendant was acquitted on charges of first- and second-degree murder based on theories of self-defense and defense-of-others,” Beck precluded the trial court “from considering any facts associated with [the victim’s] death when sentencing defendant on the CCW conviction”); People v Skippergosh, ___ Mich App ___, ___ (2024) (noting that “a person’s due process rights are violated when the sentencing court relies on acquitted conduct, even if just in minor part”⁵).

•A defendant’s refusal to provide authorities with information about other criminal conduct. People v Johnson, 203 Mich App 579, 584 (1994).

•The possibility of earlier release, good-time credits, or disciplinary credits. People v Fleming, 428 Mich 408, 428 (1987) (holding these considerations may not be used to enhance defendant’s sentence). Similarly, the court may not consider the possibility that a defendant may be granted community placement, People v McCracken, 172 Mich App 94, 102 (1988), or a defendant’s eligibility for parole, People v Wybrecht, 222 Mich App 160, 173 (1997).

•A defendant’s refusal to admit guilt. People v Dobek, 274 Mich App 58, 104 (2007). “To determine whether sentencing was improperly influenced by the defendant’s failure to admit guilt, [the Court of Appeals] focuses on three factors: ‘(1) the defendant’s maintenance of innocence after conviction; (2) the judge’s attempt to get the defendant to admit guilt; and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe.’” Id., quoting People v Wesley, 428 Mich 708, 713 (1987).

•Resentencing was required when a sentencing court implied that the defendant would be sentenced more leniently if he revealed the location of the weapon, thereby effectively admitting his guilt. People v Conley, 270 Mich App 301, 314-315 (2006).

•An independent finding of guilt that is not supported by the record with regard to other offenses for which the defendant is facing charges.⁶ People v Grimmett, 388 Mich 590, 608 (1972) (noting that “[a]t the time of the sentencing on the assault charge, defendant had not been found guilty on the murder charge,” and holding “the trial judge acted improperly in assuming defendant was guilty of the murder charge when he sentenced defendant on the assault charge”), overruled on other grounds by People v White, 390 Mich 245 (1973).⁷ 

•A defendant’s last-minute plea or exercise or waiver of his or her constitutional right to a jury trial. People v Earegood, 383 Mich 82, 85 (1970); People v Godbold, 230 Mich App 508, 512 (1998). See also People v Pennington, 323 Mich App 452, 468-469 (2018) (vacating the defendant’s sentences where “the judge’s sentencing policy was to impose the maximum recommended guidelines sentence when a defendant was convicted after going to trial,” and holding that such a policy “ignores the requirement of individualized sentencing,” punishes the defendant for going to trial, and violates due process).

•A defendant’s polygraph results. People v Anderson, 284 Mich App 11, 16 (2009).

•Local sentencing policy, to the extent that it prevents an individualized sentence tailored to the circumstances of the offense and the offender. People v Chapa, 407 Mich 309, 311 (1979); People v Catanzarite, 211 Mich App 573, 583 (1995).

•Prior convictions obtained without counsel or without a proper waiver of counsel. United States v Tucker, 404 US 443, 449 (1972); People v Carpentier, 446 Mich 19, 31 n 6 (1994); People v Moore, 391 Mich 426, 437-438 (1974).⁸

•Eligibility for early probation discharge under MCR 6.441 “must not influence the court’s sentencing decision regarding the length of the original probationary period.” MCR 6.441(G).⁹